Ashok Digal vs State of Orissa

Raghubir Dash, J.—This appeal is in challenge of the judgment of conviction and sentence dated 29.6.2009 passed by the learned Ad-hoc Additional Sessions Judge, Fast Track Court No. I, Phulbani in Sessions Trial Case No. 28/12 of 2009 (corresponding to G.R. Case No. 510 of 2008 in the court of S.D.J.M., Phulbani). The Appellant has been convicted for the offence punishable under Section 376 , I.P.C. and sentenced to undergo R.I. for 10 years with fine of Rs. 20,000/-, in default, R.I. for six months.

It is the prosecution case that the Appellant kept physical relationship with the victim, who was below 16 years of age and out of such relationship the victim became pregnant. In the 7th month of that pregnancy the victim disclosed to her parents about her plight and when the illicit relationship came to light the matter was reported to the police.

F.I.R. was lodged on 17.10.2008. During investigation statements of witnesses were recorded, the victim and the Appellant were sent for medical examination. Ossification test to ascertain the age of the victim was conducted. The doctor conducting such test opined that the victim was more than 14 and less than 16 year old. From the School Admission Register it was found that the victim''s date of birth is 2.4.1997. Medical examination of the victim further revealed that her pregnancy was 24-26 weeks old. On completion of investigation charge-sheet was submitted and thereafter the case was committed to the Court of Session.

Defence plea was one of denial and false prosecution.

During the trial, 11 witnesses were examined. Out of them P.W. 2 is the victim; P.Ws. 1 and 8 are victim''s parents; P.Ws. 3 and 4 are the teaching staff of the school whereof the victim was a student; P.W. 9 is the scribe of the F.I.R.; P.W. 5 and 11 are doctors, who examined the Appellant and the victim, respectively; P.W. 6 is a co-villager of the parties; P.W. 7 is a witness to seizure of the Appellant''s wearing apparels; and P.W. 10 is the investigation officer.

Appellant examined himself as D.W. 1 reiterating the plea of innocence and false implication.

Learned court below evaluated the prosecution evidence and finding that the victim was below 16 and believing the victim''s version that the Appellant had established physical relationship with her for which she became pregnant, passed the impugned judgment.

Challenging the sustainability of the impugned judgment it is contended on behalf of the Appellant that findings of the learned trial court are contrary to law and against weight of evidence. It is further submitted that independent witnesses having not corroborated the prosecution allegations and the witnesses examined being highly inimical and interested, the learned court below ought to have disbelieved the prosecution case. It is further contended that the defence evidence was not given due weight. Further submission is that the investigation is defective and perfunctory and that the learned court below recorded the Appellant''s statement in a defective manner.

Learned counsel for the State forcefully argues that the findings of the learned Sessions Court are unassailable and there is nothing on record that can create a cloud of doubt over the prosecution case so as to disbelieve the testimony of interested witnesses. Though it is argued that because of enmity the Appellant has been falsely implicated there is nothing on record showing the existence of any enmity or ill-feeling between the two families. Neither during his examination under Section 313(1)(b) of Cr.P.C. nor in his deposition as a defence witness, the Appellant has stated that because of enmity he has been falsely implicated. It is only during the cross-examination of the victim it was suggested to her that during the last communal riot in Kandhamal following the assassination of Swami Laxmanananda, her father (informant) with some co-villagers set fire to the Appellant''s house and that in order to escape from criminal liability her father fabricated a false case against the Appellant. Such a suggestion could have been put to the informant (P.W. 1) during his cross-examination. But no such suggestion was put to him even though questions were put to him as to how, during the riot, the house of the Appellant was burnt by some persons.

The informant and the Appellant are cousins. The latter is the son of the former''s father''s elder brother. At the relevant time the Appellant was a married person having a child. Under such circumstances and in the absence of any other obvious reason, it cannot be believed that the informant made false allegation that the victim conceived through the Appellant. Thus, the plea of false prosecution falls to the ground.

The victim and her parents support the prosecution case. P.W. 6, a co-villager, has deposed to the effect that he had seen the victim going to the Appellant''s house regularly and that the latter used to leave the victim at her school. This much of the evidence of P.W. 6, an independent witness, is not of much help. No other independent witnesses have been examined. But the learned counsel for the Appellant fails to cite names of any material witness to whom the prosecution ought to have examined for the purpose of corroboration to the testimony of the victim and her parents. Since the victim alleges rape against the Appellant she and her parents can be said to be interested in the prosecution. True, there is no independent corroboration. But there is nothing on record to show that testimony of independent witnesses are available for the purpose of corroboration.

The victim did not disclose anything about his relationship with the Appellant even to her parents till her pregnancy had gone 6-7 months old. She has stated that the Appellant is her uncle, that one day while she was returning to her village from her school hostel the Appellant asked her to stay in his house to cook food for him saying that his wife was absent, that she visited his house and on that occasion the Appellant could establish sexual relationship with her, that thereafter both of them continued keeping such physical relationship which lasted for 3-4 months and that out of such relationship she became pregnant.

She gets corroboration from the doctor (P.W. 11), who has stated that on medical examination the victim was found to be pregnant and the age of the fetus was 24-26 weeks. Having regard to the manner in which the incident has allegedly taken place and there being no chance of falsely implicating the Appellant and thereby allowing the real culprit to escape, the victim''s delayed disclosure cannot be a ground to disbelieve her testimony even if it is devoid of corroboration from independent witness.

During her cross-examination the victim has stated that on some occasions the Appellant had sexual intercourse with her inside the nearby jungle. She has further stated that Kamraj, Bhimraj, Rajiv and others had seen them in the jungle when the Appellant was keeping physical relationship with her. Inviting attention to this statement of the victim it is argued that the prosecution ought to have examined any of those persons, who admittedly happened to see the victim and the Appellant in the jungle. In this regard, it must be kept in mind that this is not a case of single incident of sexual intercourse which some persons happened to see and thereafter the matter was reported to the police. Had it been an incident like that, examination of persons who happened to see the sexual act would have become essential. That apart, the victim did not make such a statement before the I.O. and, therefore, the I.O. had no occasion to interrogate persons like Kamraj, Bhimraj and Rajiv and to cite them as prosecution witnesses. In addition to that it is also found from her deposition that she has not stated in so many words that while she and the Appellant were involved in sexual intercourse some persons including Kamraj, Bhimraj and Rajiv had seen them. That apart, her statement "Kamraj, Bhimraj, Rajiv and others had seen us at the jungle when the accused was keeping physical relationship with me" appears to be vague if read with the victim''s preceding statement "about 10-12 times the accused committed sexual intercourse with me at the nearby jungle of our village". It is vague because it is not clear as to whether Kamraj and others had seen the victim and the Appellant while they were involved in sexual intercourse inside the jungle. It is also not clear whether Kamraj and others had seen them only once or on all or many of the 10-12 occasions the Appellant had committed sexual intercourse with the victim inside the jungle. It appears to be an unguarded statement made by her, may be being unable to understand the questions put to her during cross-examination.

Having regard to the facts and circumstances of this case, no more corroboration is necessary to place reliance on the victim''s testimony.

As to the plea that the defence evidence was not properly evaluated or that the Appellant''s statement recorded under Section 313(1)(b) , Cr.P.C. is defective, it is to be stated that nothing available on record has been pointed out by the learned counsel for the Appellant to support this contention. The Appellant in his deposition has stated that his parents and his wife reside with him in one house and they are in a common mess. The purpose of adducing such evidence is to make out a case that since the Appellant was residing with his wife and parents in one house and one mess the victim''s allegation that the sexual intercourse used to take place in Appellant''s house is false and concocted. This plea seems to be an afterthought. No such defence plea was suggested to any of the prosecution witness. No such statement was made in his examination under Section 313(1)(b) , Cr.P.C. During cross-examination of the I.O. the defence elicited the fact that Appellant''s family consists of himself and his wife but during the relevant period his wife was staying at her father''s place. Presumably, in order to get rid of this assertion of the I.O. the Appellant adduced evidence claiming that he lives with his wife and parents in one house and one mess.

Though in the memo of appeal there is assertion that the investigation is perfunctory/defective no specific instances have been placed by the learned counsel for the Appellant.

Much has been argued on the age of the victim. It is submitted by the learned counsel for the Appellant that if the margin of error is allowed in favour of the Appellant her age would seem to be above 16 years and in that event the alleged sexual intercourse being undisputedly with the consent of the victim, offence of rape cannot be said to have been made out. This submission has been correctly dealt with by the learned court below. Referring to the testimony of the doctor (P.W. 11), who has made positive assertion that she had taken the margin of variation while determining the age of the victim on the basis of ossification test it is held that victim''s age was below 16. The doctor is also quite assertive in opining that victim''s age under any circumstances could not exceed 16. The learned court below referred to a judgment of this Court in Sribatcha Khamari Vs. State of Orissa, reported in 1994 (2) Crimes 476 wherein it has been held that where marginal error has been taken by the medical officer while determining age of the prosecutrix by ossification test the same can be considered.

Though the possibility of gap of two years on this side or that side of the opinion expressed on ossification test cannot be ruled out but this margin of error cannot be made applicable in each and every case where the victim''s age, determined on ossification test, is subject matter of consideration in a criminal trial. In Dutta Pradhan and Others Vs. The State of Orissa, it is observed that if invariably in all cases it is accepted as a general proposition that the margin of error is two years then cases in which the victims of kidnapping and rape are around 15 years or between 15-16 years, may, in most cases, end in acquittal which would definitely cause miscarriage of justice.

Evidence is adduced by the prosecution by examining P.Ws. 3 and 4 who have stated that as per School Admission Register victim''s date of birth is 2.4.1997. If the age of the victim is counted from 2.4.1997 then she was aged about 11 at the relevant time. But this entry in the School Admission Register cannot be said to be correct in the absence of evidence from victim''s parents that the victim was born on 2.4.1997. The mother does not say anything about the victim''s age. The father expressed his inability to give victim''s date of birth. P.W. 3 says that the date of birth was recorded in the School Admission Register on the basis of the transfer certificate produced at the time of her admission in Class-VI. There is no evidence as to on whose statement and on what basis the victim''s date of birth was recorded in the record of the school that issued the transfer certificate. Under such circumstances, the date of birth as per school record is not acceptable.

Having dealt with all the submissions made by the learned counsel for the Appellant in his sincere effort to assail the findings of the learned court below and finding that learned court below has rightly convicted the Appellant, the order of conviction is not liable to be set aside.

While assailing the sentence it is submitted that R.I. for 10 years with fine of Rs. 20,000/- is on the higher side. In support of this contention it is submitted that the Appellant is very poor, that at the relevant time he was aged about 24, that he is the only earning member of his family having the responsibility of maintaining his wife, children and old parents, that in the meanwhile he has already spent little more than 7 years in jail which is more than sufficient for the offence found to have been committed by him. Learned counsel for the State, on the other hand, submits that the Appellant deserves no sympathy and must be treated with a heavy hand. In support of this he invites Court''s attention to the relationship between the victim and the Appellant, his marital status, the age of the victim and the repeated act of rape committed on the victim which ultimately came to light only after she became pregnant. Learned counsel for the Appellant also cites the judgment in Zindar Ali SK Vs. State of West Bengal and Another, wherein the sentence of 10 years of imprisonment has been reduced to the period of 5 years already undergone.

Having regard to the submissions made by the learned counsels and also taking into consideration the facts and circumstances of the case in hand, it is considered just and adequate to pass a sentence of 8 years of R.I. instead of 10 years, while maintaining the sentence of fine.

In the result, the appeal is partly allowed. The impugned order of conviction is confirmed but the sentence stands modified to the extent that instead of 10 years of R.I. the Appellant shall undergo R.I. for 8 (eight) years for the offence punishable under Section 376 , I.P.C. whereas the order regarding imposition of fine with default sentence and the order regarding payment of compensation to the prosecutrix is maintained. Needless to mention that the period of confinement already suffered by the Appellant shall be set off.